We have for consideration the merits of appeals
in two cases which have been consolidated and presented together here.

In the first case the decree denied and dismissed
the petition whereby it was sought to vacate a decree pro confesso entered on
the first day of November 1909 and a final decree entered pursuant thereto on
the 20th day of November, 1909.

In the second case the decree was in favor of the
plaintiffs below, appellees here, adjudicating absolute fee simple title to the
involved property to be in the plaintiffs.

If the plaintiffs be adjudged by us to have a
clear fee simple record title to the property, or if plaintiffs be adjudged to
have clear fee simple title to a part of the property and defendants be adjudged
to be estopped to claim title as against the plaintiffs as to the remainder of
the property, such adjudication will settle the rights of the parties and it
will be unnecessary to discuss other contentions presented.

Whether or not the plaintiffs have a clear fee
simple title depends upon whether or not a certain written instrument under seal
be construed as a conveyance of title or as merely a bond for title. The
involved written instrument is as follows:

"STATE OF FLORIDA

"MARION COUNTY.

"Know all Men By These Presents that I, B.
M. Dell of the State of Florida and County of Alachua have this day bargained
and sold, aliened, confirmed and delivered unto R. J. Steele & J. W. Roper
of the State of North Carolina & Co. of Richmond a certain tract or parcel
of land situate, lying and being in the State of Florida and County of Marion on
the South side of Orange Lake in Township Twelve (12) South of Range 22 East and
North of Section 26 containing six hundred and forty acres (640), also two other
parcels of land adjoining this containing 120 acres. The said Steele and Roper
agreeing to pay me for the above named lands the sum of Six Thousand Dollars in
three several installments as follows, viz. Two Thousand Dollars on the 20th
February next, Two Thousand Dollars on the first of January 1856, Two Thousand
Dollars on the first of January 1857 and I agree and bind myself, my heirs,
executors and administrators and assigns in the sum of Twelve Thousand Dollars
to the said Steele & Roper to make them a title or deed to the above named
land in fee simple when they have made me the third and last payment as above
prescribed. In witness of which I have hereunto set my hand and Seal this the
18th day of December 1854.

"Bennet M. Dell (Seal)

"Attest

"John E. M. Templeton.

"STATE OF FLORIDA

"COUNTY OF MARION

"Personally came before me A. S. Goin Clerk
of the Circuit Court in and for the County and State aforesaid John M. E.
Templeton a subscribing witness to the foregoing instrument of writing who being
duly sworn deposes and says that he saw Bennet M. Dell sign, seal and deliver
the same for the purposes therein expressed and that he subscribed the same as a
witness. In testimony whereof I have hereunto set my hand and seal of office
this 2nd January A.D. 1860.

"A. S. Goin, Clerk."

The record shows that the instrument was duly
filed and recorded on January 2nd, 1860.

The fact that the instrument bears the signature
of only one subscribing witness is of no moment now because the instrument may
be considered valid under the doctrine applicable to ancient written documents.
See Peninsula Naval Stores Co. v. Mathers, 96 Fla. 620, 119 Sou.
333, 26 C.J.S. Deeds, Art 188.

If the instrument was a deed of conveyance, it
comes within the purview of c. 10169, Acts of 1925, Sec. 5695 and 5696 C.G.L.

With these points aside and bearing in mind that
all parties claim from a common source, that is from Bennet M. Dell, we come to
the matter of construing the instrument, supra.

The record shows that at the time the written
instrument was executed Dell had received a patent from the United States
Government issued May 15, 1852, conveying to him lots 1, 2, 3, 4, 5, 6, 8 and 9
of Section 23, Township 12 South, Range 22 East, and had also received patent
from the United States Government, bearing the same date, conveying lot 9 of
Section 24, Township 12 South, Range 22 East. It shows that after the conveyance
by Dell, Dell received patent dated May 1, 1855, conveying lot 8 of Section 24,
Township 12 South, Range 22 East, and also received from the United States
Government a patent dated April 1, 1859, conveying the NW1/4 of NE1/4 of Section
26 and lot 7 of Section 23, Township 12 South, Range 22 East.

We find by reference to plat in the record that
all the lands patented to Dell in 1852, Lots 1, 2, 3, 4, 5, 6, 8 and 9 are in
Section 23 and lie south of Orange Lake and north of Section 26.

Lot 9 in Section 24 lies south of Orange Lake but
not north of Section 26. Lot 7 of Section 23 lies south of Orange Lake and north
of Section 26 but Dell did not receive the patent to that lot until after April
1, 1859.

The description in the instrument was sufficient
to identify lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Section 23, Township 12 South,
Range 22 East, and it appears from the plat that it would require more than all
of the land lying between Orange Lake and the north boundary line of Section 26
to make up the 640 acres as stated in the instrument.

The rule as to after acquired title in grantor is
applicable to lot 7 in section 23 as stated in 8 R.C.L. 1058, Sec. 110, it
appears that,

"As a general rule, when a person conveys
land in which he has no interest at the time, but afterwards acquires a title to
the same land, he will not be permitted to claim in opposition to his deed, from
the grantee, or any person claiming title from the grantee."

See cases cited in support of text.

The document relied on by plaintiffs below as a
muniment of title did not contain a description sufficient to identify or pass
title to the lands therein referred to as "two other parcels of land
adjoining this containing 120 acres," but it did contain a sufficient
description to identify that part of section 23 lying south of Orange Lake and
north of section 26.

Neither do we perceive the existence of any
element of estoppel which will bar the defendants in the court below from
asserting title to those lands not included in the area south of Orange Lake and
north of Sec. 26.

The Circuit Court held the instrument, supra, to
be a deed because by its terms, viz:

"Know all Men By These Presents, that I, B.
M. Dell, of the State of Florida and County of Alachua, have this day bargained
and sold, aliened, confirmed and delivered unto R. J. Steele and J. W. Roper of
the State of North Carolina & Co. of Richmond, a certain tract or parcel of
land,"... the instrument conveyed a present estate.

We concur in such construction.

In 16 Am. Jur. 448 Sec. 20, the text is:

"In order that an instrument purporting to
convey title to land or an interest or estate in land may be valid as a deed and
operative to pass such title to or interest in land, it is essential that there
be a grantor, a grantee and a thing granted, and that it convey a present
interest or estate. It is further necessary that the instrument be signed by the
grantor, someone whom he directs to sign for him, or his authorized agent, be
attested and acknowledged in conformity to the local statutory requirements, and
delivered by the grantor to the grantee, or to someone in his behalf and
accepted by the grantee. No prescribed form is, however, essential to the
validity of a deed or to make it operative if it makes known the transaction. To
make a conveyance valid, it is in general sufficient that there be parties able
to contract and to be contracted with, a proper subject matter sufficiently
described, apt words of conveyance, and an instrument of conveyance duly sealed
and delivered. Generally speaking, any words which denote the intention of the
parties to a deed to transfer the title from one to another are sufficient to
make a conveyance, and the court will give effect to that intention
notwithstanding inaccuracy of expression or the inaptness of words used."

At page 622, Sec. 326, supra, it is said:

"If the terms of the granting clause of the
deed are sufficiently comprehensive to convey any title which the grantor may
have in the premises which are the subject of the deed, the instrument will
operate as a conveyance of all his right and title although his right or title
is particularly described as being something less than that which he actually
owned."

In Smith v. Noble, 174 Ky. 15, 191
S.W. 641, is found an enlightening discussion of the question here involved.

The construction which we give the instrument is
supported by the action of the parties, viz:

(a) From the date of the conveyance Dell, the
grantor, exercised no rights of ownership over the lands and until 1899 the
heirs of Dell exercised no rights of ownership over the lands. The only right of
ownership attempted to be exercised by some of the heirs of Dell was the
execution of deeds conveying such interest as they may have had therein.

(b) From the date of conveyance to the present
time the grantees have continuously exercised rights of ownership by executing
mortgages encumbering the lands, making deeds of conveyance of parts of the
lands, exercising actual possession over parts of the lands by maintaining
fences and ditches enclosing the same from 1882 for a period of eight years, or
more, and by paying all state and county taxes.

The latter part of the instrument, viz:

"The said Steele and Roper agreeing to pay
me for the above named lands the sum of Six Thousand Dollars in three several
installments as follows viz, Two Thousand Dollars on the 20th February next, Two
Thousand Dollars on the first of January 1856, Two thousand Dollars on the first
of January 1857 and I agree and bind myself, my heirs, executors, administrators
and assigns in the sum of Twelve Thousand Dollars to the said Steele and Roper
to make them a title deed to the above named land in fee simple when they have
made me the third or last payment as above prescribed. In witness of which I
have hereunto set may hand and seal this 18th day of December, 1854,", --
when construed with the balance of the installment, constituted no more than a
retention of lien to secure the payment of the sums therein specified. The
record shows positively that part of the sum, for the payment of which lien was
retained, was paid and as more than twenty years have passed in which payment
may have been enforced (see Soderberg v. Davis, 118 Fla. 288, 159
Sou. 23; Thompson on Real Property, Vol. 5, Sec. 4541, page 665; Beall, et
al., v. Folmar, 199 Ala. 596; 75 Sou. 172; Lindsey v. Thornton,
234 Ala. 109, 173 Sou. 500; Wayt v. Cariwithen, 21 W. Va. 516) any
claim which the heirs or assigns or legal representatives of Dell may have had,
has been long barred.

So it is that such lien as Dell may have retained
by the above quoted provision in the deed was barred by the statute of
limitation prior to the execution of the first pretended deed by Dell's heirs to
other parties.

Aside from this, however, there being no statute
derogatory thereto, the common law rule of presumption of payment arises from
lapse of time. See Buckmaster v. Kelley, et al., 15 Fla. 180. In
that case Mr. Chief Justice RANDALL wrote the opinion and the length discussed
the doctrine of presumption of payment based on lapse of time. It would evidence
presumption upon the part of this writer to attempt to substitute the
expressions of his thoughts for those of that learned Chief Justice.

In the record, there appears no evidence of
nonpayment. There is, as heretofore stated, evidence of prompt payment of the
part of the obligation which Mr. Roper considered himself bound for. There is no
evidence of any demand for payment ever having been made. All these things
combined lead the Court to the inevitable necessity of adjudging that the
purchase price for which lien was retained was paid and the lien discharged.

Having reached the conclusion herein stated, it
is not necessary for us to discuss any other phases presented.

The decree which denied and dismissed the
petition whereby it was sought to vacate a decree pro confesso entered on the
first day of November, 1909, and a final decree entered pursuant thereto on the
20th day of November, 1909, which was the decree involved in the appeal first
hereinabove mentioned, is affirmed.

The decree in the second case hereinabove
mentioned is affirmed insofar as it adjudicates title in the plaintiffs below,
appellees here, to all lots and plats of land described in the decree except lot
9 of Sec. 24, and NW1/4 of NE1/4 of Sec. 26, all in Township 12 S., R. 22E., as
to which the decree is reversed. The cause is remanded with directions that a
decree be entered into not inconsistent with the views herein expressed. So
ordered.

Affirmed in part and reversed in part.

It is further decreed that the costs incident to
these appeals shall be taxed equally against the appellants on the one part and
the appellees on the other.